12.08.15

Legal Analysis Reveals That EPO Principal Director for Human Resources (Bergot) Resorts to “Gross Violation of Due Process”

Posted in Europe, Patents at 7:25 pm by Dr. Roy Schestowitz

Summary: Why the EPO’s attack on staff representatives is so outrageous, based on a legal letter sent to the UN’s Special Rapporteur for Freedom of Speech and Expression, Special Rapporteur for Freedom of Association, Special Rapporteur for Human Rights Defenders, Jesper Kongstad (Administrative Council), and Director of the Netherlands Patent Office

IN order for people to understand just how out of line the EPO‘s management has stepped, at this point in time we may need to show some legal documents which explain what the EPO’s management is actually doing.

The lawyers' response which we published here earlier today we now have in textual form. This reply is important as it helps highlight some of the things wrong with the EPO’s approach. It was also copied to some staff at the United Nations.

Having received it from several sources (not just one), we now wish to post this as HTML. “This one is already two-weeks old,” told us one source, “but just came out.” This source is aware that many people are becoming aware of this response (as they probably ought to). “It will probably reach you by more than one correspondent,” we were rightly told.

Here it is without any annotation or emphasis:

SCHWAB | FLAHERTY | ASSOCIES

Attention : Nouvelle address
7, rue de Candolie
CH-1205 Geneve

Alexandre J . Schwab
Avocat – MBA

Edward Patrick Flaherty
Attorney at law – Member of the US Supreme Court
and Massachusetts Bar
Membre de l’Ordre des Avocats de Geneve

Michael Ford Shanahan
Attorney at law – MBA
Member of the US Court of Appeals
for the Armed Forces and Colorado Bar

Can Burak Bayhan
Attorney-at-Law
Economist/stock & FX Expert
Member of the Istanbul Bar Association

Monika Ona Bileris
Attorney- at-Law
Member of the New York Bar (USA)

RECOMMANDEE & PAR
COURRIEL

Mr Jesper Kongstad
Director General
Danish Patent and Trademark Office
Helgeshoj Alle 81
2630 TAASTRUP
DANEMARK
e-mail: -

Mr Derk-Jan De Groot
Director–Netherlands Patent Office
P.O. Box 10366
2501 HJ DEN HAAG
PAYS-BAS
e-mail: -

Geneva, 23 November 201:5

Concerne: Ms Elizabeth Hardon v European Patent Office (EPO)

Dear Sirs:

Further to my three (3) prior letters to you concerning my client, EPO Staff member Ms. Hardon, dated 8 and 21 October, and 11 November 2015, respectively1 by which we
__________________________________
1 These letters detailed a number of procedural and substantive detects in the pending disciplinary proceedings against Ms. Hardon, which are clearly directed against her on account of her actions in her capacity, to wit:
*the charge letter of 4 September 2015 (case N°. – –detailed in my letter and attachments of 8 October 2015) did not state the name of the complainants (in violation of ILOAT Judgment N° . 2014 which holds that it is “contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons”), the source of the purported statements asserted as misconduct in the letter, or any evidentiary basis for the initiation of the investigation against Ms. Hardon.
*the charge letter of 4 September makes clear that the claims against Mr. Hardon (that she “orchestrated and promoted” a harassment campaign against an EPO colleague, and that she later attempted to intimidate other staff representatives) were based on confidential meetings of the Local Staff Committee in Munich, which is both an egregious breach of confidentiality as well as the right of all EPO staff members to exercise their freedom of speech and association.
*the charge letter of 4 September claims that a single (indeed misquoted) sentence expressed in a confidential discussion among duly elected EPO staff representatives, and at best an assertion of an opinion rather than one of fact, amounts to actionable “harassment”.
*As indicated in my letter of 8 October, the charges of 4 September 2015 are very similar to specious harassment charges brought against Ms. Hardon nearly two years ago, also in her capacity as a staff representative, also based on a single sentence, expressing the collective opinion of several staff representatives, contained in a confidential email sent to 16 recipients who were either elected staff representatives or experts retained by such


Page | 2

demanded that you initiate an independent investigation into her claims of institutional harassment, Ms. Hardon was now been advised by letter dated 17 November 2015 from the Principal Director for Human Resources, – , that she was suspended immediately from service until further notice, on the basis of allegations of alleged harassment detailed in my prior letters to you referenced above (extract attached). Additionally, Ms. Hardon is now accused of conspiring with a suspended EPO staff member from DG3 “to systematically and repeatedly disseminate defamatory information”, and to have communicated “with various members of news outlets, throughout 2013 and 2014, disclosing without authorisation non-public information”. It appears obvious that the Office will move swiftly to terminate Ms. Hardon’ s appointment, which has clearly been its bad faith intention all along.

Ms. Hardon has denied any and all allegations of misconduct against her and continues to do so. The latest specious and vexatious allegations of misconduct now form the subject of yet another disciplinary proceeding. This brings the number of disciplinary complaints which are being simultaneously prosecuted against her to three (3). In and of itself, this would tend to confirm her assertions of institutional harassment. It also makes it clear that the latest allegations can only be seen as a further, irregular continuance of the institutional harassment alleged in the previous demand letters. This is particularly true in view of the fact that one of the procedural defects detailed in my letter to you of 11 November 2015 (namely, that Ms. Hardon’s accuser was not disclosed to her) has now been resolved in part with the revelation that the complainant is in fact -, the EPO Principal Director for Human Resources. The fact that the complainant is the very same person who is prosecuting all three disciplinary cases against Ms. Hardon is in itself a gross violation of due process.

The suspicion of serious procedural irregularities is further supported by the fact that a considerable number of critical documents to which Ms. Hardon is entitled to review as part
of her fundamental right of defence were missing from the annexes to the letter informing Ms Hardon of Disciplinary Procedure N°. D – dated 17 November 2015 (attached). Her response and request for such missing documents is also attached hereto.

Additionally, it is our information and belief that the Enlarged Board of Appeal decision (Art. 23/15 of 17 September 2015) found that the charges against the staff member primarily
accused in case C- and the related case – were not substantiated. Accordingly, it is
__________________________________
representatives. Despite the irregular and ultra vires finding of the Investigative Unit that the charges were “founded and proven”, the responsible Disciplinary Committee, properly mandated to evaluate whether the conduct of Ms., Hardon was incompatible with several articles of the EPO Service Regulations, found unanimously in Ms. Hardon’s favor and rejected the charges against her, recommending that the President close the proceedings and reimburse her legal fees. Despite this unanimous recommendation, the President imposed a down-grading upon Ms. Hardon, which decision is under appeal at the ILOAT. They also parallel prior false charges of harassment levied against Ms. Hardon for “campaigning against” another staff member, which charges were set aside by the ILOAT in its Judgment N°. 2984.
*As pointed out in my letter and attachment of 8 October, the initiation of repeated disciplinary proceedings against Ms. Hardon on the basis of specious and frivolous misconduct charges, all of which to date have been rejected by the EPO Disciplinary Committee and the ILOAT, is further incontrovertible evidence of the EPO’s ill will towards Ms. Hardon in particular and its bad faith against staff representatives generally, which numerous hostile and intimidating attacks against her personally have set back Ms. Hardon’s career leading to financial as well as professional injury, damage to her dignity and reputations, causing significant injury to her health.
*Ms. Hardon’s suspicion that she is the target of an orchestrated campaign by senior EPO officials to drive her out of the Office on false grounds is confirmed in her letter attached to my letter to you of 21 October 2015, where it is revealed that the complainant in Case N°- is not the staff member alleged to have been harassed, but in fact – who is also prosecuting the case against Ms. Hardon, a further gross violation of fundamental due process.


Page | 3

a legal impossibility for Ms. Hardon to have been an accomplice with her colleague when his actions were not found to be misconduct, requiring that all charges against Ms Hardon arising out of case C- and the related case C- be forthwith dismissed.

Finally, at the point in time when the Investigation Unit invited Ms. Hardon to comment on the summary of findings in the latest investigation case C- the Office Administration had already decided to initiate a disciplinary procedure against her incorporating allegations from Case-. This action on the part of the Office Administration appears to have been motivated by her actions in rightly declining to submit to an interview when she had already been identified as a target of the subject investigation2>. Her “refusal” to attend an interview pending clarification of deficiencies in the invitation was not in any way a refusal to cooperate with the investigation. The Office Administration has apparently responded by making the allegations from C- the subject of a disciplinary action (see enclosed annex) despite the fact that the case had not yet been closed. As a matter of fact, at the point in time when the disciplinary report was issued, i.e., 17 November 2015, the deadline for the submission of Ms. Hardon’s written comments on the summary findings pursuant to Art. 18 (1) of the EPO Investigation Guidelines (which was set for 23 November 2015) had not yet expired. In addition to violating the cited jurisprudence, these actions would also appear to be in breach of Art. 18 (2) and (7) of the EPO Investigation Guidelines and, moreover, would appear to undermine the integrity of the investigation.

You have thus far failed to take any action in response to Ms. Hardon’s requests for an investigation into the harassment claims against her, in violation of applicable ILOAT jurisprudence3. On behalf of Ms. Hardon, I therefore repeat once again her request for an

__________________________________

2 In the recent UNDT decision Judgment No. UNDT/2011/081 (Cabrera), the level of due process to which an international civil servant is entitled when he or she becomes of the “target” of a misconduct investigation was clearly stated: “In conclusion, the Tribunal is of the opinion that the assurances of due process and fairness … mean that, as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modern times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to his interests, sine processu.”

“It is a fundamental principle of due process that where an individual has become the target of an investigation,then that person should be accorded certain basic due process rights …as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modem times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to bis interests, sine processu.”

ILOAT Judgments No. 2475 and No. 295 also confirm this view, dictating that investigations must “be conducted in a manner designed to ascertain aU relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made.”

The fundamental requirements of due process set out above have indisputably been egregiously ignored in Ms. Hardon’s case to date, which she shall vigorously contest in all fora available to her.

3 ILOAT Judgment N°. 3485 at consideration 16: “It is not controverted that some of [the complainant's] complaints went unanswered. This shows that there was a degree of indifference regarding his express concerns. This was not only another aspect of harassment but also a breach of the ICC’s duty of care towards the complainant which, in addition to the breach of due process, entitles him to moral damages [...].”
And ILOAT Judgment N°. 3377 at consideration 14: “The evidence further shows that the Organization also breached its duty to ensure that his complaints were addressed in a proactive manner ….”, and at consideration 26: “Firm precedent has it that when an official makes allegations of harassment, she or he is entitled to have


Page | 4

immediate, independent investigation by an external authority into her harassment allegations, including the most recent specious allegations against her, and further, that you take immediate, meaningful interim measures to stop such alleged institutional harassment of Ms. Hardon, including the lifting of her irregular suspension, and prevention of EPO’s intended imminent termination of her appointment. Please treat this demand as a further request for a final administrative decision.

Thank you for your courtesy and attention; we look forward to your prompt reply.

Enclosures
Cc: client
UN Special Rapporteur for Freedom of Speech and Expression
UN Special Rapporteur for Freedom of Association
UN Special Rapporteur for Human Rights Defenders

__________________________________
them dealt with in accordance with the rules and procedures in force (see Judgment 2642, under 8). If an organisation fails to do so, it breaches not only its own policies and rules, but also its duty of care towards the official.”

And ILOAT Judgment N°. 3347, at consideration 14: “However, given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on claims of harassment has the necessary resources to carry out that responsibility (see Judgment 3069, under 12).”

And Judgment N°. 3337 at consideration 11: “The Tribunal has consistently stressed the serious nature of allegations of harassment in the workplace and the need for international organisations to investigate such allegations promptly and thoroughly. This is a function of the organisation’s duty of care to its staff members to uphold their dignity. [... ] »

There may still be some typos or unintentional omissions above. The intentional omission is the name Bergot (c/f part one, part two, part three, and part four of “EPO: It’s Like a Family Business”), which isn’t just engaging in some kind of ‘cat fight’ here as she is clearly the “complainant [and also] the very same person who is prosecuting all three disciplinary cases against Ms. Hardon” which is “in itself a gross violation of due process.”

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2015/12/08/legal-analysis-hardon-case/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. Dr.Guinness said,

    December 9, 2015 at 7:47 am

    Gravatar

    For me it is not a surprise at all that Mrs Bergot is making so much fundamental serious failures in all her actions – Gross Violation of Due Process .She entered the office as a simple administrator and has now to do a very complex process after a very very short career. Also the other members of the team BB can and could not help her, because as we have
    seen the last months even Mr.R.Lutz made many serious juridical failures.

What Else is New


  1. We Take Away Your Freedom for Your Own Safety...

    People are herded like cattle and protest/dissent will be demonised as part of the new norm; what will be the cost of the pandemic and will resistance to the status quo ever be permitted to resume?



  2. EPO President Pushes Illegal Software Patents in South America (Over the Telephone With a Misleading New Puff Piece)

    The EPO's "news" section has become worse than a form of distraction (from the EPO's internal rot); it celebrates illegal and unlawful practices, spreading them to other continents



  3. The Free Software Foundation Warns Against Using Twitter

    Richard Stallman said Twitter was OK because it was possible to use it without proprietary software; that's no longer the case, so the Free Software Foundation (FSF) speaks out against it. It speaks about it more than 3 months after the problem became a known one and also an irreversible one (maybe Twitter would have reversed the decision if the media or the FSF actually spoke about it early enough).



  4. IRC Proceedings: Thursday, February 25, 2021

    IRC logs for Thursday, February 25, 2021



  5. Stéphane Bortzmeyer Explains Gemini Protocol (February 2021)

    A recent talk from Stéphane Bortzmeyer about Gemini and what it is for (or why)



  6. Links 26/2/2021: Istio 1.7.8 Announced, Blender 2.92, Firebird 3.0 Language Reference, FSF Against Twitter

    Links for the day



  7. Special Thanks to Mogz

    Credit where it's due to Mogz



  8. Modifying WordPress to Include Gemini Links in All Articles (Assuming a Canonical URL Form)

    In order to promote the departure from the World Wide Web (where possible and suitable; sites with text don't typically need Web-like features) one can promote the analogous pages in one's Gemini capsule; we suggest a way of doing so in WordPress (the most widely used CMS)



  9. Links 25/2/2021: RHEL for Open-Source Infrastructure, GNOME 40 Beta, LXPanel 0.10.1

    Links for the day



  10. IBM and Qt Don't Understand Free Software and They Now Impose Terms and Conditions on Who Qualifies for Use of Free Software Free of Charge

    IBM and Qt Don't Understand Free Software and They Now Impose Terms and Conditions on Who Qualifies for Use of Free Software Free of Charge



  11. Techrights Gemini Capsule, Now With Over 35,000 Pages and Files

    Blog posts combined with static (plain text) files are now 36,000+ in number, just for Gemini protocol alone; that number keeps growing as our conversion proceeds and evolves (our software will be released under terms of the AGPLv3)



  12. Eventually, or Hopefully, Many People Will Come Back to What the Web Used to Be (Or Web Alternatives More Like the 'Old' Web)

    With RSS feeds making a comeback and a resurgence of personal blogs we can take back the Web from a cabal of tech/Internet giants and social control media, censored, curated and spied on by oligarchy



  13. If Wikipedia is Controlled by Corporations and Mobs, It Needs to Be 'Cancelled'

    Facts have never truly mattered in social control media sites; it certainly seems as though Wikipedia now suffers the very same issue/deficit, allowing oligarchs and their companies to define what goes on in the world and which people Wikipedia should regard as persona non grata



  14. GNU/Linux Reaffirms Its Status as the Universal and Inter-planetary Operating System

    The operating system made for and by scientists (not business sharks and marketing cults) is winning the battle, and not only in this planet



  15. IRC Proceedings: Wednesday, February 24, 2021

    IRC logs for Wednesday, February 24, 2021



  16. Links 25/2/2021: Kali Linux 2021.1, Wine Launcher 1.4.46, and Google's Security Posing

    Links for the day



  17. Links 24/2/2021: MariaDB 10.5.9, Krita 4.4.3 Beta, and Debuginfod Server for Debian

    Links for the day



  18. Self-Host Your Videos, Take Full Advantage of HTML5 and Video Attributes

    For self-hosting of videos over the World Wide Web (Gemini too can handle videos; its clients/browsers can, for example, link video files/URLs to external media players) it's worth reviewing the full set of features made available by the standards because a lot can be accomplished without JavaScript and without unnecessary bloat/complexity



  19. Trying Out NoiseTorch to Reduce Background Sound/Noise in GNU/Linux

    An introduction to noisetorch (or NoiseTorch), an application that helps create virtual microphones/devices with reduced background noise



  20. How the Big Banks and OIN Can Whitewash Software Patents and Do Nothing Concrete About Patent Trolls

    Response to the puff piece entitled "How the Big Banks and OIN Can Lock Out Patent Trolls with Enabled Publications"



  21. IRC Proceedings: Tuesday, February 23, 2021

    IRC logs for Tuesday, February 23, 2021



  22. How to Set Up a Gemini Server of Your Own, Even on a Simple Single-Board Computer

    Using Agate to start one's own Gemini capsule (self-hosted) is a lot simpler than one might be inclined to believe; this is a detailed HOWTO, hoping to encourage more people to join Gemini space, which is fast-growing and free of garbage



  23. Links 23/2/2021: Tails 4.16, Libinput 1.17, Fwupd 1.5.7, Firefox 86, NeoChat 1.1

    Links for the day



  24. The Word Master is Not Problematic in Most Contexts and Its Origin Hasn't a Connection to Slavery

    Slavery is to the word "master" mostly disconnected; it might, however, be closely connected in the minds of racists or the agenda of highly racist corporations (profiting from racism) that look for ways to distract from their racism



  25. On Misapplication, Misuse, Overuse and Abuse of Words (to Suit False Narratives)

    It is looking like the word "abuse" has been extended to basically mean all sorts of things including the act of actually exposing real abuse



  26. The Administrative Council Needs to Fix the EPO While It's Still Possible

    EPO staff and former staff (pensioners) aren't happy and the it's the responsibility of the Administrative Council to do something before it's too late (the reputation of the Office is already severely harmed and it's unable/unwilling to recruit suitable and qualified people, both as examiners and managers, respectively)



  27. 'These Questions Remain Unanswered': Campinos Became Battistelli Just Halfway Through His Term

    The Central Staff Committee of the EPO highlights the grim situation or the deadlock reached after totally dysfunctional Office management somehow managed to kill off channels of communication, in effect going back to where things were back in 2018 under Battistelli



  28. 'The One Percent': Salary Adjustment Procedure (SAP) Supported Only by 1% of EPO Staff

    Out of 2,237 EPO workers who expressed their position on the SAP, which in essence lowers their salary, only 31 expressed support for it (that's 1.385%)



  29. IRC Proceedings: Monday, February 22, 2021

    IRC logs for Monday, February 22, 2021



  30. DDOS Attacks and Decentralisation

    Our server, which is shared among sites, has been under persistent distributed denial of service (DDOS) attacks almost every day in recent weeks, culminating in much worse attacks last night, but we're not too worried anymore


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts